]]>In the aftermath of the recent botched Oklahoma execution, long-time legal affairs correspondent Tim O’Brien reviews arguments for and against capital punishment. “The country’s long been divided over whether to have it and has decided that we will have it in 33 states,” observes O’Brien, “but that only led to even more difficult questions. How do you do it? How do you implement it? And can you do it fairly and rationally?”

The ancient Roman Colosseum, known historically for violent gladiator battles, animal combat, and public executions, has become a symbol for international protest against capital punishment.

Over the past decade, every time a convicted person receives a stay of execution or a government abolishes the death penalty Roman officials change the Colosseum’s night illumination from white to gold.

It happened in December 2007 when New Jersey abolished the death penalty. It happened again this March when Governor Bill Richardson signed a bill to repeal the death penalty, making New Mexico the 15th US state to do so, according to the Death Penalty Information Center.

The special lighting was recently repeated on April 15, when Richardson and other New Mexico representatives, including Archbishop Michael Sheehan of Santa Fe, were honored at a Colosseum ceremony marking the state’s repeal. Richardson also met with Pope Benedict XVI and spoke at a news conference in Rome organized by the Sant’Egidio Community, an international lay Catholic organization opposed to capital punishment.

Richardson, who is a Democrat, a Catholic, one of the most prominent Hispanic politicians in the US, and a one-time supporter of the death penalty, told the Associated Press in February he was struggling with his position but his views on the death penalty had “softened.” He pointed to the work of the Roman Catholic Church against capital punishment, indicating that discussions with Archbishop Sheehan had influenced his own considerations.

But Richardson also cited as a factor the financial cost of imposing the death penalty. In doing so he highlighted one of the most striking recent developments in the death penalty debate: economic arguments against capital punishment have become as important as religion or ethics, and they are now regularly invoked by opponents of capital punishment. Because life without parole is cheaper for the state than the death penalty, the repeal of capital punishment, they say, will allow more resources to be channeled to survivors of the victims of crime. In New Mexico, according to the legislative finance committee a death penalty case costs approximately $20-25,000, compared to $7-8,000 for a non-death penalty murder case.

For many death penalty opponents, New Mexico’s repeal was the result of years of hard work. The bill was first introduced 12 years ago, but it always faced challenges in the senate’s judiciary committee. “It was heartbreaking,” says the Rev. Dr. Holly Beaumont, a Disciples of Christ minister and legislative advocate for the New Mexico Conference of Churches. She represents the conference on the New Mexico Coalition to Repeal the Death Penalty.

Over the years faith-based death penalty opponents in New Mexico remained resolute, says Beaumont. “We weren’t going away, and the legislature knew that we would be back again.” She attributes their ultimate success to the multi-layered nature of the coalition, a collaboration of faith communities, the families of murder victims, Death Row exonerees, and other “people of conscience.” The coalition focused on reaching and educating those who had not yet made up their minds about capital punishment and pointed its advocacy efforts directly at the Roundhouse, New Mexico’s state capitol building and the home of its legislature.

In addition to New Mexico, a number of other states around the country have been dealing with death penalty repeal this year. A coalition of religious leaders, lawyers, and the families of murder victims is supporting passage of a pending bill to abolish the death penalty in Colorado, where this month the House of Representatives voted down capital punishment by a one-vote margin, and lawmakers say they will use the money saved (estimated at about $1.4 million per death penalty case) to solve hundreds of “cold” murder cases. The Colorado bill now heads to the state Senate, where it is expected to pass.

New Hampshire and Kansas have also considered anti-death penalty legislation this year. In New Hampshire, the House voted to end capital punishment, but the governor has said he will veto any repeal. In Kansas, where repeal was advocated primarily as a way to save money, the effort stopped short of a vote and the issue is scheduled for more study. According to the Wichita Eagle, each death penalty case costs an average of 70 percent more than each non-capital case. The paper also suggests that Kansans will be watching to see how nuanced the stand on capital punishment held by US Senator Sam Brownback, a Republican and a Methodist covert to Roman Catholicism, will be in his coming bid for governor.

In a recent vote Montana state senators supported a plan to replace the death penalty with life in prison with no parole. But at the end of March the judiciary committee of Montana’s House of Representatives rejected the proposed abolition bill. The prospect of wrongful executions of innocent people and the expense of capital legal procedures were both major factors for those who supported the bill. According to Republican Senator Roy Brown, a pro-life Catholic and recent candidate for governor, supporting a ban on the death penalty was consistent with his anti-abortion stance. But Republican judiciary committee vice-chairman Ken Peterson, a Mormon who opposed repeal, said the Book of Mormon and “eight books in the Old Testament” support the death penalty.

All of these efforts to repeal the death penalty seem to be getting a boost from the current economic crisis and are evidence of renewed interest in the argument that the death penalty costs considerably more than sentencing murderers to life in prison. Many legislators seem especially interested in financial arguments this year. In Maryland, for example, an Urban Institute study estimated that the average cost to taxpayers for reaching a single death sentence is $3 million, about $1.9 million more than the cost of a non-death penalty case.

Still, Maryland Governor Martin O’Malley, a Catholic, urged the state Senate to repeal the death penalty outright on moral grounds, characterizing capital punishment as “an issue that touches the very soul of who we are as a republic, who we are as a people” and as “one of the defining moral quandaries of our times.” He called on lawmakers to consider the “higher things” on which our “free and diverse republic was founded” and asked the legislators: “Will we be a society guided by the fundamental civil and human rights bestowed on humankind by God?”

But Maryland lawmakers amended the repeal bill and decided instead to make the state’s death penalty statute among the most restrictive in the nation, limiting capital cases to those with DNA or biological evidence, a videotaped confession, or a videotape linking the suspect to a homicide. Even though the Maryland House of Delegates appeared ready to end capital punishment entirely, O’Malley urged them to accept the restrictions and “the innocence reform bill” because, as Maryland Citizens Against State Executions (CASE) concluded, “it moves our state in the direction of more justice,” and it will save lives.

Last year close to 70 leaders from various faith communities signed a letter to calling on the Maryland General Assembly to abolish the death penalty. This year the Ecumenical Leaders Group in Maryland formed an Interfaith Coalition to End the Death Penalty, encouraging leaders of faith communities to host death penalty events at their places of worship and asking them to talk about the death penalty during services. Sermon stories were made available on the CASE Maryland Web site.

Nearly half of CASE Maryland’s member organizations are religious groups, including Quakers, Catholics, Methodists, Presbyterians, and ecumenical ministries. In addition to sermon suggestions, the group’s Web site includes an open letter to pastors, clergy, and congregational leaders making the case for abolition of the death penalty in light of the Christian faith: “Christians of all faith denominations have long held that the death penalty violates the sanctity of human life, eliminates the opportunity for redemption, and its application is not consonant with the example of Jesus’ forgiveness of injustice.”

Indeed, one of the strategies of the successful repeal movement in New Mexico was also to concentrate on themes of restoration and restitution rather than retribution. Supporters emphasized that passing the repeal bill offered the opportunity for killers to repent of their actions and eventually achieve some sort of reconciliation.

New Mexico’s repeal legislation will take effect on July 1. During the 2010 legislative session, the New Mexico Coalition to Repeal the Death Penalty now says it will focus its efforts on support for the education of children who have had a parent murdered and increased funding to the New Mexico Crime Victims Reparation Commission for services to families of murder victims, among other issues. Future steps also include a bill that provides restitution to the families of murder victims.

While Beaumont acknowledges the role the current economic crisis played in swaying New Mexico legislators this year, she still stresses the importance of trying to “change the world view” of defenders of the death penalty, asking them questions and engaging them in conversation that will get at “when was the last time you changed your mind about some deep ethical issue, and what was it that caused you to change your mind?”

“You will never convert someone you hold in contempt,” says Beaumont, who regrets the misuse of Scriptures and the lack of what she calls “good biblical interpretation” in the death penalty debate. “We’ve done so much damage that people aren’t listening anymore,” she says. “They do not want to hear Scriptures that enlighten the world we live in because they are used to hearing Scriptures that have been used as a weapon rather than to empower and guide.”

But it may be that, in a recession, money will trump moral argument as states continue considering repeal of the death penalty. As the Boston Globe recently editorialized, “Almost every state is facing a deficit, and getting smart about corrections budgets is an unexpected side benefit. Abolitionists will take whatever argument they can.” It went on, however, to reassert the more conventional arguments against capital punishment: “The death penalty is not a deterrent to most deadly crimes. It is applied unevenly. It places the United States among the world’s most brutal regimes. And there are 130 other reasons: the 130 death-row inmates who were exonerated by new evidence. Their deaths would have carried an awful price tag.”

Despite all the arguments—economic, biblical, or otherwise—for repeal, and increasing attention to death penalty abolition in legislatures across the country, it still needs to be noted that the state of Texas, long the nation’s leader in executions, continues on pace this year to execute perhaps more than twice as many criminals as in 2008, when 18 Death Row inmates were put to death.

Elaine de Leon, an intern at Religion & Ethics NewsWeekly from January-April 2009, is receiving a Master’s degree in Theological Studies in May from Wesley Theological Seminary in Washington, DC.

BOB ABERNETHY, anchor: The Supreme Court ruled this week that all 270 foreign terrorism suspects at Guantanamo have the right under the U.S. Constitution to challenge their detention in federal court. Another High Court decision excepted soon could expand the death penalty. Right now, 36 states permit capital punishment for murder. Should that penalty be extended to those who rape children? Criminologists say people are punished to prevent them from committing another crime, as a deterrent to others, to rehabilitate them and as retribution — revenge. Does revenge for child rape justify execution? Tim O’Brien begins his report from New Orleans, and his story contains some material that may be disturbing.

VOICE OF FEMALE ANCHOR (ABC 26 News 1998 file footage): Today, safety shattered in a quiet neighborhood. A child raped. The teens who did it: on the run.

VOICE OF MALE REPORTER (ABC 26 News 1998 file footage): People who live in the Woodmere subdivision are hoping for peace of mind. The thought — a rapist is on the loose…

TIM O’BRIEN: The brutal rape of a small child galvanized this normally tranquil community just outside New Orleans and horrified the neighbors.

UNIDENTIFIED MAN #1: There’s got to be some maniac running around out here.

UNIDENTIFIED WOMAN: I wouldn’t have never thought that someone would live on my street and do something like this.

Sheriff HARRY LEE (Jefferson Parish, Louisiana, during 1998 press conference): I’m in my 18th year as sheriff and I’ve seen a lot of bad things happen, and this is probably the worst.

O’BRIEN: So bad that Jefferson Parish Sheriff Harry Lee put up $5,000 of his own money for information leading to an arrest. In addition to the psychological trauma, the eight-year old girl also suffered severe physical injuries. The city of New Orleans rallied to help, including the New Orleans Saints football team, which launched a fundraising drive to help defray the child’s mounting medical expenses.

O’BRIEN: The manhunt became so intense sheriff’s deputies began stopping all young black males in the neighborhood.

UNIDENTIFIED MAN #2: They made me take my shirt off, and, you know, it’s cold out here, you know?

VOICE OF FEMALE REPORTER: What were they looking for?

UNIDENTIFIED MAN #2: Just tattoos, any little marks.

O’BRIEN: The victim had told police her attackers were two black teenagers. But the story fell apart, and suspicion began to shift to the child’s stepfather, Patrick Kennedy, who had called co-workers on the morning of the rape seeking advice on how to remove blood from a white carpet. It turned out Kennedy also had been accused, although never convicted, of sexually molesting four foster children in his care. They were removed. His eight-year-old stepdaughter eventually said that it was Kennedy — six-feet-four, 375 pounds — who had raped her and then told her to blame it on the teenagers.

CHILD VICTIM : First, he told me that he was going to make up a story and I better say it.

O’BRIEN: And, she said, it wasn’t the first time Kennedy had sexually molested her.

FEMALE INTERVIEWER: Did Patrick Kennedy do something to you just that one day, or did he did he do anything any other times?

CHILD VICTIM : He did more than once. I think five (holds up five fingers).

PROSECUTOR : More than once? You think five?

CHILD VICTIM : Um-hmmm.

PROSECUTOR : Okay. Do you remember how old you were the very first time he did something?

CHILD VICTIM : (shakes her head “no”)

O’BRIEN: Three years earlier the Louisiana legislature overwhelmingly passed a law authorizing the death penalty for anyone who rapes a child under the age of 12. The jury agreed unanimously: Patrick Kennedy deserved nothing less. The law was introduced by then state representative Pete Schneider

(to Rep. Pete Schneider): Is this the kind of guy you had in mind when you passed this law?

Representative PETE SCHNEIDER (Former Louisiana State Representative): Absolutely. Someone who would brutally rape a child — and rape is wrong no matter whom it is done to, but in a situation like this I believe the death penalty is the appropriate punishment for the crime.

O’BRIEN: Kennedy’s court appointed lawyers disagree and have taken their case to the U.S. Supreme Court, arguing if the death penalty for rape isn’t cruel, it certainly is unusual, violating the Eighth Amendment to the U.S. Constitution.

BILLY SOTHERN (Capital Appeals Project): Mr. Kennedy is one of only two men on death row in the state of Louisiana for the crime of child rape. Indeed, Mr. Kennedy and this other individual are the only two men in the United States for the crime of child rape who’ve been sentenced to death.

O’BRIEN: The U.S. Supreme Court, more than 30-years ago, found the death penalty unconstitutional for rape — that death is disproportionate to the crime.

BARBARA WALTERS (Anchor, ABC Evening News, from 1977 file footage): Good evening. Our top stories: The Supreme Court says the crime of rape should not be punishable by death.

O’BRIEN: But that case involved a 16-year-old married woman. Louisiana contends the rape of a child is much worse and that the Court’s earlier opinion shouldn’t apply when the victim is so young.

Rep. SCHNEIDER: Twenty-nine percent of the rape cases in this country — and it’s probably underreported — are committed on 11-year-olds and younger. Twenty-nine percent! And they’re horrendous crimes. You steal their childhood. You steal their soul. You hurt the world when you do something like that to a child.

O’BRIEN: We may never know to what extent, if any, the death penalty actually deters, but there’s clearly another theory behind this Louisiana law. Call it revenge, or retribution, or a thirst for simple justice which, if left unfulfilled, may encourage others, loved ones, to go out and find it on their own. Sex offenders may be the least likely to be deterred, and their crimes are the most likely to bring retribution. Jeffrey Doucet: suspected of kidnapping and molesting an 11-year-old Baton Rouge boy. When sheriff’s deputies brought Doucet back to Louisiana, the boy’s father, Gary Plauche, was waiting at the Baton Rouge airport with a gun. Believing they could never get a conviction, prosecutors allowed Plauche to plead guilty to manslaughter with a suspended sentence. The state’s attorney general, Buddy Caldwell, says it’s the state that must exact the retribution, not loved ones, and that the Louisiana law makes it less likely they”ll try.

(to Louisiana Attorney General Buddy Caldwell): Even if it doesn’t deter others — that’s an open debate. Bu even if it doesn’t, you say the death penalty in cases like this is justified?

O’BRIEN: Some of your opposition, including the Catholic Church, will quote the Bible and say “vengeance is mine, so sayeth the Lord.”

Mr. CALDWELL : Well, we see a lot of people that don’t have a clue. But I think most people understand, even liberals have children that if they’re raped and mutilated, like in a lot of these cases, they would be for the death penalty, whether they say so or not. It’s always the other guy.

O’BRIEN: It’s a retributive function of the law?

Mr. CALDWELL : I think so.

O’BRIEN: Ironically, a number of child advocacy groups are siding with the defendant in this case, telling the Supreme Court the death penalty for child molesters is counterproductive. Judy Benitez, who heads the Louisiana Foundation against Sexual Assault, says Louisiana’s law may discourage children from coming forward and give the molester an incentive to kill his victim.

JUDY BENITEZ: If they’re not facing any harsher punishment for killing the child and raping them, then they are for — and I say this sort of facetiously — for just raping them, you know, the state can’t kill them but once. So what are they going to do? And this way they don’t leave a living witness.

O’BRIEN: Patrick Kennedy’s lawyer says if retribution is the goal, life in prison is retribution enough.

Mr. SOTHERN: The alternative punishment here in Louisiana for the crime of child rape is life without the possibility of parole at Angola penitentiary. It’s “you die at Angola.” So it’s not like the alternative punishment for this is somehow lenient. The alternative punishment in this instance is extraordinarily harsh.

O’BRIEN: Both sides agree the law does make it easier for prosecutors to negotiate a plea agreement with the defendant for life in prison, sparing the child the trauma of having to testify at a trial. The question for the Supreme Court, however, is not whether this is a wise law or even a good law, or whether it even makes any sense at all, only whether it’s such a bad law as to violate the standards of decency of a civilized nation as embodied in the U.S. Bill of Rights.

BOB ABERNETHY, anchor: The Supreme Court convenes on Monday — at least, most of the court does. Tim O’Brien looks at the cases the justices will consider.

TIM O’BRIEN: From the first bang of the gavel on this first Monday in October, the role of religion in our society will be on display. The justices will sit — but they won’t be hearing arguments in recognition of Yom Kippur, the holiest of Jewish holidays. That has not happened before.

The court’s two Jewish members, Ruth Bader Ginsburg and Stephen Breyer, are expected to take the day off.

One of the earliest issues the court will have to confront involves the Pledge of Allegiance in public schools. Students clearly do not have to participate. But an appeals court in California ruled merely standing by while classmates pledge allegiance to “one nation, under God” violates separation of church and state.

Congress added the words “under God” back in 1954, at the peak of the Cold War, in part to distinguish the United States from what was called “godless Communism.” But last February the lower court found that adding those two words “impermissibly takes a position with respect to the purely religious question of the existence and identity of God.”

In another case later this fall, the court will consider a new twist in the debate over state aid for religious instruction: not whether states may subsidize religious instruction, but whether they must.

The case involves a theology student at Northwest College, a Christian school in Kirkland, Washington. Because the state constitution prohibits any aid to religion, students majoring in theology are disqualified from competing for a state-sponsored scholarship. The lower court ruled that singling out theology majors for exclusion violates their First Amendment right to the free exercise of their religion.

There are some issues that seem to return to the court every year — issues that sharply divide the justices just as they do the country. Religion is one of them; the death penalty is another. It’s mentioned several times in the Constitution itself and it still enjoys broad popular support. So the court is not going to find capital punishment unconstitutional per se — but there are lingering questions about the ability of our justice system to implement it fairly.

There are currently more than 3,500 inmates on Death Row in the United States. The court has agreed to consider the case of one of them: Delma Banks, who has been on Death Row in Texas longer than any other inmate — more than 20 years.

In what could be a made-for-TV drama, Banks was within 10 minutes of being executed last spring when the high court agreed to consider his claims that prosecutors failed to turn over exculpatory evidence and that he was also denied the effective assistance of counsel.

The biggest news from the court on its first day, Monday, will be in the cases it doesn’t take. Nearly 2,000 cases have been submitted for review. But the court is selective; most, if not all of these cases will be rejected. Denying review sets no binding precedent for other courts to follow. But whatever the lower court had ruled stands. It’s the justices’ way of saying yes by saying no.

]]>BOB ABERNETHY, anchor: As the U.S. continues to debate the rightness or wrongness of capital punishment, we look at two aspects of the issue. Next week, Huntsville, Texas — where the state prison system carries out more executions than any other in the country. This week: What happened when one state governor declared a moratorium on capital punishment?

Lucky Severson reports:

LUCKY SEVERSON: Decision time, as the state assembly tackles an array of legislation that could alter or ultimately abolish the death penalty in Maryland.

SEVERSON: House Bill 16 is getting most of the attention. It would reinstate a moratorium on the death sentence that was imposed by Maryland’s former governor, then lifted by the newly elected Republican governor, Robert Ehrlich. So now Maryland has become a central battleground for the increasingly angry debate over capital punishment.

It was in May 2002 when then Governor Parris Glendening stopped all executions in Maryland. That was after a very comprehensive study found that prosecutors are far more likely to seek the death penalty if you are black and your victim is white.

Del. MARRIOTT: It is not likely that, had I been the victim in any of these current cases, would the person be on death row.

SEVERSON (to Del. Marriott): Because you are a black woman?

Del. MARRIOTT: Because I am a black woman.

SEVERSON: Delegate Salima Siler Marriott is not very popular with death penalty advocates, who refer to her as “criminal friendly.” She’s a sponsor of the bill that would extend the moratorium.

Del. MARRIOTT: We know that in Maryland there are disparities in the system. We also know in Maryland that many individuals have also been exonerated. Or their sentence has been commuted because there have been some flaws. So I strongly believe under this present system of flaws no one should be executed.

KAY CROSS (Parent of Murder Victim): Is the death penalty handed out fairly in Maryland? No, and how inconsiderate of Joey to be murdered allegedly by a black man.

SEVERSON: If the man charged of murdering Kay Cross’s son is convicted, she wants him to pay the ultimate price.

Ms. CROSS (at hearing): This is my baby Joey. He was 21 years old when his home was broken into and he was murdered. Flat out and in cold blood. Every vital organ in his body was destroyed, with a final shot to the back of his head.

SEVERSON: Kay Cross and her companion of 20 years, Don Moats, are fed up with the appeals process afforded the accused murderer. For them, the death penalty is justice, pure and simple.

Ms. CROSS: We have to fight tooth and nail to try and get justice done when that should be readily available to us. You know, that is what we are entitled to — justice.

Del. MARRIOTT: What is important to them in my opinion is a decision in my opinion only God can make and not the state. And for me as a representative of this state, it is extraordinarily offensive.

VICKI SCHIEBER (Parent of Murder Victim): I don’t think I ever learned what sanctity of human life means as I learned from this experience.

SEVERSON: Vicki Schieber’s daughter Shannon had graduated from Duke, was working on her master’s degree — a wonderful life ahead. And then in the middle of the night…

Ms. SCHIEBER: She had been raped. There was a terrible fight. She had bitten him quite a bit. There was blood all over the bedspread and on the wall and the drapes.

SEVERSON: The murderer was found and convicted. Because of the DNA evidence, there was no question.

Ms. SCHIEBER: You are in terrible shock. Then there is anger. Yes, there is anger. Yes — “Why would you do this?” There is such anger.

SEVERSON: But the anger, and the empty place in their lives, didn’t change the Schiebers’ view on capital punishment.

(to Ms. Schieber): You are opposed to the death penalty?

Ms. SCHIEBER: If you have principles, that is the time those principles are tried. If you lose them then you never had them in the first place, did you?

SEVERSON: Vicki and her husband have testified for Maryland’s moratorium bill. She is grateful her daughter’s killer got life without parole instead of death. She wants to meet him.

Ms. SCHIEBER: I think it will help me heal. It hasn’t been easy. It has been very hard, but I think it will be good. We will find some good.

FRED ROMANO (President, Maryland Coalition for State Executions, at hearing): When you commit a murder you should be held accountable with your life.

SEVERSON: Fred Romano is president of the Maryland Coalition for State Executions. He founded it. It’s his mission in life, to speak out for what he calls the “silent voice.” And he is tired of bleeding hearts, as he sees them, who are more concerned about the killer than the victim’s family.

Mr. ROMANO: Don’t come to me when you have never faced it and tell me how I should feel — because I feel the way I feel. When you murder someone in cold blood you need to die.

(testifying): It seems like the victim’s face is lost in the shuffle.

SEVERSON: Fred Romano testified in favor of a bill called Dawn’s Law. It is named after his sister, who was raped and then sadistically murdered in 1987.

Mr. ROMANO: He took a gun and put it to her head and shot her twice in the head. And that’s what happened. And then went to the refrigerator and drank a beer when it was done.

SEVERSON: Dawn’s Law requires the state to seek the death penalty for any murder, with one exception — unless the victim’s family is against it. It’s similar to a law in Pennsylvania, where Vicki Schieber’s daughter was killed. Only the Schiebers, much to the chagrin of the prosecutor, said they opposed capital punishment.

The district attorney in Philadelphia came out and said that would put the Schiebers in the anomalous position of having to spare the life of the person who put their own daughter to death.

(to Ms. Schieber): You have no second thoughts?

Ms. SCHIEBER: No second thoughts. I have never regretted it for a moment.

SEVERSON: It’s not only for religious reasons that Vicki is against the death penalty. Several studies have shown evidence of racial bias, incompetent or lazy public defenders, disparities in how the death penalty is applied in different jurisdictions. And a study by Columbia University found that the state of Maryland has a particularly high rate of errors in cases where the death penalty might have been imposed.

UNIDENTIFIED JUDGE (at hearing): If Maryland proceeds with executions, it is inevitable that some innocent persons will be executed.

SEVERSON: Since 1976, at least 127 inmates on death row have been exonerated because [of] among other things, recanted or tainted testimony or because of DNA evidence, as was the case with Kirk Bloodsworth. He had intended to spend his life as a waterman on the Chesapeake Bay in Maryland. Instead, he spent eight years in prison, two on death row, for the rape and murder of a nine-year-old girl, until a DNA test cleared him.

KIRK BLOODSWORTH (Former Death Row Inmate): My life was a living hell every day. The innocent part you talked about was what got me through every day. I knew I didn’t belong here.

SEVERSON: He says his first day out of jail was the happiest of his life. But then reality set in. It’s been difficult finding and keeping a job. The accusations against him didn’t stop.

Mr. BLOODSWORTH: I worked at a tool company, and people used to write “child killer” on the side of my truck. A lot of people don’t understand what DNA is, they just believe it is some sort of technical jump to get out of prison, like a loophole — when, in fact, it is a white knight to me.

SEVERSON: Kirk has asked the Maryland legislature to abolish the death penalty — instead, to use Maryland’s “life without parole law.” Fred Romano, like most Americans, it seems, disagrees.

Mr. ROMANO: Life in prison to me does not mean death in prison. Because you’ve got some person like Delegate Marriott who is going to try and change the laws, and the next thing you know all those guys who were serving life in prison with no parole are going to be eligible for parole. And they all are going to be walking the street and killing again.

SEVERSON: In the end, the moratorium legislation was defeated, and the state’s capital punishment law is back in place. For Fred Romano and Kay Cross, justice may now be done. Vicky Schieber and Kirk Bloodsworth worry that innocent men and women may die in the name of justice.

]]>BOB ABERNETHY, anchor: In this country, debate about the death penalty has been revived and sharpened, on all sides, by last weekend’s dramatic actions in Illinois. The outgoing Republican governor, George Ryan, pardoned four death row inmates and commuted the death sentences of all 167 others on death row. Ryan called the capital punishment system “arbitrary and capricious, therefore immoral.”

Steve Mills has been covering the Illinois story for the CHICAGO TRIBUNE. Steve, welcome. What is the reaction this week in Illinois to what Governor Ryan did?

STEVE MILLS (CHICAGO TRIBUNE): Well, it’s been very sharply divided. Prosecutors like Dick Divine in Cook County here say that the governor overstepped his bounds. And families, they just think the governor has betrayed them entirely. Defense lawyers and death row inmates and their families are very heartened by what happened.

ABERNETHY: Some people on death row, I have heard, don’t want to be moved back to the regular prison situation?

MR. MILLS: Well, the common theme on death row is that if you’re there, the media and the courts will give your case a little more consideration than they might give the garden-variety murderer. There are also some issues with creature comforts — that on death row you are left alone, you have better TV — things like that.

ABERNETHY: What have you heard from people in the victims’ families?

MR. MILLS: Well, Sam Evans, whose daughter and grandchildren were murdered in DuPage County, outside of Chicago, felt that he was betrayed by the governor, that the governor had said he wouldn’t take this sort of broad action and did anyway. He was deeply disappointed.

ABERNETHY: Was there any religious reason for what Governor Ryan did?

MR. MILLS: The only allusion that he made, or reference that he made, was that he didn’t want to play God. Otherwise, no.

ABERNETHY: And what about religious leaders? What was their reaction?

MR. MILLS: Surprisingly they have been very quiet. Before he made his decision, we didn’t hear much from them and since then we haven’t heard much either.

ABERNETHY: Steve, has the significance of what Governor Ryan did — or his sincerity — has that been discounted at all because he is the center of a corruption scandal?

MR. MILLS: Well, those who oppose the commutations have always suspected that he was doing this as cover for the corruption scandal and for his possible indictment. His supporters say that he is following his heart and that he looked at the cases and did the right thing.

ABERNETHY: What happens now in Illinois about the death penalty?

MR. MILLS: Well, there are a number of reforms on the table — such things as outlawing the execution of the mentally retarded, limiting the number of factors that make someone eligible for the death penalty. The new governor, Rod Blagojevich, has said he will continue the moratorium, and prosecutors are seeking death sentences against new defendants. So death row will soon fill up again.

ABERNETHY: Illinois is one of 38 states that has the death penalty. What do you hear about what people are saying about what is likely to happen nationally now, as a result of what Illinois did?

MR. MILLS: I think that what might happen is that states that practice the death penalty a lot –states like Texas or Virginia or Florida — will sort of become isolated and the other states on the edges — Connecticut, Nebraska — they may give it up entirely. And even in Illinois, they are talking about that as well.

]]>BOB ABERNETHY, anchor: U.S. Supreme Court Justice Antonin Scalia is generating controversy on another issue before the court on the death penalty. Last week, Scalia criticized the Roman Catholic Church’s stand against capital punishment. Kim Lawton has the story.

KIM LAWTON: Justice Antonin Scalia is regarded as a devout Roman Catholic, but he is publicly taking issue with the pope, the U.S. bishops, and Catholic teaching.

At a forum on religion and the death penalty, Scalia said he does not agree with the Church’s position on capital punishment. Scalia did not allow videotaping of his remarks, but he did permit an audio recording.

Justice ANTONIN SCALIA: That is not to say that I favor the death penalty. I am judicially and judiciously neutral on that point. It is only to say that I do not find the death penalty immoral.

LAWTON: For centuries, Catholic teaching accepted capital punishment. But Church officials say the teaching has developed over time. When he came to St. Louis in 1999, Pope John Paul II urged an end to the death penalty. So have the U.S. bishops.

Cardinal ROGER MAHONY (Archdiocese of Los Angeles): The Church is not looking for a fail-safe system of the death penalty. I don’t care how good the attorneys are or how good the DNA evidence is, we are against the death penalty period.

LAWTON: The Catholic Catechism, the compilation of Church teaching, says in today’s world, circumstances where the death penalty may be warranted are, quote, “very rare, if not practically non-existent.”

Justice SCALIA: As for the very latest edition of the new Catholic Catechism, I assume that is just the phenomenon of the clerical bureaucracy saying, “Yes, boss.” In any case, I have given this new position, if it is indeed that, thoughtful and respectful consideration, and have rejected it.

LAWTON: Scalia also rejected the pope’s argument that opposition to the death penalty is part of a consistent respect for life that includes opposition to abortion and euthanasia. U.S. Church officials declined to respond to Scalia’s remarks.

]]>BOB ABERNETHEY: When may a lawyer reveal what a client tells him in confidence? The American Bar Association recently made the rule less restrictive. It permits — but does not require — lawyers to disclose confidences to prevent, quote, “reasonably certain death or substantial bodily harm.” It remains a gray area, and attorneys who obey the confidentiality rule sometimes do so at the expense of innocent people. Lucky Severson reports

LUCKY SEVERSON: Henry Drake has a lot to think about. He’s lost his family and 12 years of his life sitting on Georgia’s death row.

(to Drake): When you were on death row, you are there to be killed?

MR. HENRY DRAKE: Yes sir.

SEVERSON: Do you think about that every day?

MR. DRAKE: Every day.

SEVERSON: What do you think?

MR. DRAKE: All day long, when the door opens, you’re going to die, that’s it.

SEVERSON: But Henry Drake was innocent, a victim, ultimately, of what the legal profession calls “legal ethics.” Twelve years on death row, even though the attorney for the man who accused him knew Henry was not guilty. The attorney was simply obeying the confidentiality rule within the code of legal ethics.

An expert on the subject, New York University Law School Vice Dean Stephen Gillers. He says if a client knows his confidentiality is protected, he’ll be more inclined to tell everything, and his attorney can do a better job.

DEAN STEPHEN GILLERS (New York University Law School): The confidentiality rule really says to the client, look, I am here to serve you and I am going to protect your secrets, you can tell me whatever you want.

SEVERSON: The crime Henry Drake was accused of committing occurred at this tiny Colbert, Georgia barbershop in December 1975. Here’s what we know: William “Pops” Campbell dropped by for a haircut, claimed he got a bad one, and then beat the 76-year-old barber, Mr. Eberhart, to death with a claw hammer. Campbell walked away with $400 in cash. When he was caught, he told police it was his friend Henry Drake who committed the murder. Both men were charged with the murder, and both convicted.

Campbell’s public defender was Pat Beall.

MR. PAT BEALL (Public Defender): My response at the time was that I had a client who was in a pickle, … “Pops” Campbell. Henry Drake was never my client.

SEVERSON: William “Pops” Campbell and Henry Drake ended up here, in what is called, oddly enough, “The Diagnostic and Classification Prison,” which also houses Georgia’s death row. Inside, Campbell told Drake he had signed an affidavit at the suggestion of a visiting church minister admitting that he had lied.

SEVERSON: (with Drake, reading from Campbell’s affidavit): “I was the one who killed Mr. Eberhart. Henry wasn’t even there. He didn’t have anything to do with it.”

Attorney Pat Beall knew Henry Drake was innocent, but felt obligated to keep it secret while he pursued an appeal to get his client, William Campbell’s, sentence reduced.

MR. BEALL: I told Campbell, if you want to stay off death row, his best bet would be to be quiet about that issue.

SEVERSON (to Beall): It seems inconceivable that you could get a guilty man off and let an innocent man pay for it with his life.

MR. BEALL: I had my job. My job was to be “Pops” Campbell’s attorney, to do the best that I could do for “Pops.”

SEVERSON: Beall says he consulted his minister and the state bar about his dilemma. His minister was neutral.

MR. BEALL: The state bar said essentially that my highest duty was to my client.

SEVERSON: Did you sleep better after that?

MR. BEALL: Yeah, I did.

SEVERSON: Mary Wilkes was fresh out of law school when her law firm defended Henry Drake, pro bono.

MARY WILKES (Lawyer): Pat is a very decent person and a very fine attorney and clearly his interest was doing what he thought was the right thing to do. At the same time, I felt somewhat frustrated that in my mind, you’ve got an innocent man, you can’t stand in the way of him getting a new trial, and how can you not even think about releasing this information?

SEVERSON: For the average American who might be befuddled or outraged at the ethics of this case, consider this: what Pat Beall did was required by state court rules in nearly every American jurisdiction.

DEAN GILLERS: Today, the lawyer whose client has confessed to a murder for which an innocent person is on death row could not reveal that fact to the authorities.

SEVERSON: It wasn’t until William Campbell died, permanently ending his appeals process — it wasn’t until then that Pat Beall felt he had fulfilled his attorney-client obligation and was willing to testify on Henry Drake’s behalf — to get him out of here finally.

MR. BEALL: I felt no qualms after Campbell passed away to go to trial and testify on Henry Drake’s behalf as his witness.

SEVERSON: Did you feel good about it?

MR. BEALL: Just doing my job.

SEVERSON: The American Bar Association offers video seminars of actors portraying attorneys dealing with ethical situations, but the public gets its impressions about lawyering from prime-time TV.

Footage from ABC program THE PRACTICE: He’s going to kill again. That’s not something to mention in your closing. Not even something we should think about.

SEVERSON: TV may do a good job dramatizing ethical dilemmas but usually doesn’t explain that the lawyers are simply obeying the rules. For instance, the confidentiality rule prohibits defense attorneys from revealing facts about a past crime. And the rule in most states makes it very difficult for an attorney to disclose confidential information except in the most extreme cases, such as when criminal violence is imminent.

DEAN GILLERS: What the rule really addresses and only addresses is the client who walks into a lawyer’s office carrying a gun and says, “I’m fed up with that S.O.B., I’m going to go and kill him,” and storms out of the lawyer’s office.

SEVERSON: No wonder, according to a recent Gallup poll, the public rates lawyers high, among the top professions, for prestige, but nearer the bottom for honesty and ethics.

DEAN GILLERS: People might love to hate lawyers, but when it comes to their own particular problem, they want their lawyer to be a junkyard dog, to be a real S.O.B. and to get for them every cent the lawyer can, whether or not it’s fair and just.

SEVERSON: It’s not only the public who view lawyers negatively. Lawyers themselves, particularly new ones, wrestle with the demands of their profession and their own sense of what’s right.

PROFESSOR WILLIAM ELWARD (Loyola University Law School — to students): Is there room for having a conscience in the practice of law? Do you think there’s room for this?

SEVERSON: Professor William Elward teaches a Loyola law school class on evidence, with some ethical twists.

KIM (Student): It really bothers me that people think that if you’re going to practice law you can’t have ethics, and I have very strong ethics. And I could not work for a nursing home as an attorney, if I knew they were doing bad things.

PROFESSOR ELWARD: But … you have a summer home, you got a Lexus, you have a husband, you have direct TV.

SEVERSON: The confidentiality rule comes into play for corporate behavior as well. Almost every company headquarters in every American city has at least one corporate attorney whose job is to keep the company within the law but cannot violate the confidentiality rule, even when the corporation is breaking the law.

DEAN GILLERS: Just think about that: a dangerous product can seriously injure thousands of people, can kill dozens or hundreds of people, but a lawyer today will not be allowed to reveal, in a great majority of states, the prospect of the injury.

SEVERSON: One of the more notable cases occurred here in Chicago when a corporate attorney blew the whistle on a potentially dangerous company product and was fired for it.

When Roger Balla, here with his attorney Alan Amos, heard that his employer, Gambro Incorporated, intended to sell substandard filters for kidney dialysis machines, he advised against it. And then Balla heard the company was going ahead with the sale anyway. Although Gambro never admitted guilt, according to the court opinion, the substandard dialyzers could be dangerous.

MR. ALAN AMOS: Again, this was from the opinion, “We will sell them to a unit that is not currently our customer, but who buys only on price.”

SEVERSON (to Amos): So price would be the determining factor, the health of the patient would not be?

MR. AMOS: It seems that way, doesn’t it.

SEVERSON: When Balla heard Gambro was proceeding with the sale he protested again and was fired, told it was an employee cutback.

The next day he reported [this to] the Food and Drug Administration, which immediately seized the filters and stopped the sale. He later sued Gambro, charging that he was fired for blowing the whistle.

But Roger Balla lost the case. The court ruled that he didn’t deserve compensation for being fired, because he was simply doing his duty. Illinois is one of the few states that requires attorneys to report potentially life-threatening wrongdoings to the authorities.

DEAN GILLERS: It’s a very sad case, and very bad law, and thankfully it’s been rejected in a number of other American jurisdictions.

MR. AMOS: Why let the business prosper because it’s doing something illegal? And yet the lawyer who goes out on the limb and risks his professional career in order to adhere to a legal ethic, and reports that, is given no benefit whatsoever, and the corporation is immune from any lawsuit. That to me is wrong.

SEVERSON: Every attorney we have spoken with concedes [that] the confidentiality is not perfect, but defends it as a fundamental reason the American justice system works.

As for Henry Drake, he’s not so sure about legal ethics.

(to Drake): Do you hate William Campbell?

MR. DRAKE: No. No, I don’t hate nobody.

SEVERSON: What about the lawyer? Mr. Beall?

MR. DRAKE: He was wrong. He was wrong. He was a wrong man.

SEVERSON: It will be of little comfort to Henry Drake that the American Bar Association is considering adding some exceptions to the confidentiality rule. But most observers don’t expect any significant changes. For RELIGION & ETHICS NEWSWEEKLY, I’m Lucky Severson near Colbert, Georgia.

BOB ABERNETHY: Most states have laws that are less restrictive than the ABA rule, when it comes to disclosing confidential information between attorney and client.